may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Kathryn L. Green,
Washington County District Court
File No. K2004129
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Doug Johnson, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of felony obstruction of legal process, appellant Kathryn Green argues that the prosecutor committed prejudicial misconduct by commenting on her character, including her use of profanity, by injecting his personal opinion about the credibility of her testimony, and by misstating the law. We affirm.
Stillwater Police Officer Nathan Meredith was assigned to redirect traffic at the intersection of Greeley Street South and Curve Crest Boulevard during a parade held in Stillwater as part of an annual community festival. A barricade was set up at the intersection to block the northbound traffic lane, and a pickup truck with its overhead lights activated and “Stillwater Police Parking Enforcement” written on it in large block letters was parked behind the barricade. Meredith stood next to the barricade.
Green’s daughter, Jennifer Germscheid, testified that Green drove up to the barricade and asked Meredith if she could drive around it to park. When Meredith told Green that she could not go around the barricade, Green told him that she was going to park in a lot just north of the barricade and began driving slowly around the barricade. Germscheid testified that due to traffic, Green could not safely turn her car around without going around the barricade. Germscheid testified that Meredith ran up to the passenger side of Green’s car and stuck his arm in the window and punched the top of the car with his other hand. Meredith fell down as he ran alongside the car.
According to Germscheid, when Green parked, Meredith ran up to the car and pulled Green out. Meredith grabbed Green by the arm, flipped her around, threw her down onto the top of the car, handcuffed her hands behind her back, and then pulled up on the handcuffs very hard. Meredith yelled at Green the whole time, but Germscheid did not recall whether he used foul language. On cross-examination, Germscheid admitted that Green swore when Meredith refused to allow her to proceed north on Greeley.
The testimony of Casia Dame, another passenger in Green’s car, was consistent with that of Germscheid.
The state introduced transcripts of telephone conversations Green had with her father and a friend while Green was in jail. In both conversations, Green stated that she simply told Meredith that she wanted to park in the lot just north of the barricade and Meredith lost it and started screaming at her and beating on her car, causing damage to it, so she drove into the parking lot to get away from him. Green stated that after she parked, Meredith ripped her out of the car, tore her shirt, threw her head down onto the hood of her car, and handcuffed her in a very physically aggressive manner. During the conversations, Green called Meredith unflattering names and used profanity.
Meredith testified that when Green got to the barricade, she stopped in the southbound lane with her car facing north. Meredith approached the passenger side of the car to tell Green that she could not proceed north on Greeley and would have to turn around. Green told him that she only wanted to go a couple of blocks north to the Lily Lake parking lot, and he repeatedly told her that she could not proceed north. Meredith testified that Green had plenty of room to turn around without going around the barricade. Meredith testified that instead, Green said “F*** you” or “F*** that”; rapidly accelerated her car, squealing and spinning the tires; and drove around the barricade. Meredith banged on the hood of Green’s car with his fist in an effort to get her attention and make her stop. Meredith was not certain why he fell but thought that the mirror on Green’s car must have caught his belt and spun him around, causing him to fall.
Meredith testified that when he got to Green’s car in the parking lot, she was already getting out, and he did not pull or yank her out of the vehicle. Meredith testified that he took hold of Green’s left arm, handcuffed her, and escorted her to the police truck. He denied throwing Green up against the car.
Off-duty Roseville Police Sergeant Loren Rosand, who was attending the parade with his family, heard Meredith yelling at Green to stop. Rosand saw Green accelerate hard around the police truck and into the parking lot. Rosand saw Meredith fall, but he could not see if Green’s car struck him. Rosand did not see Meredith strike or do anything to Green’s car. Rosand testified that Meredith got up and ran to Green’s car and instructed Green to get out of the car. When Green did not get out of the car, Meredith grabbed her arm and escorted her out of the car and then handcuffed her. Rosand did not see any physically aggressive acts by Meredith towards Green.
Lora and Paul McHugh, who were attending the parade with their children, saw the incident from a parking lot at the Greeley and Curve Crest intersection. Lora McHugh heard Green arguing with Meredith and Meredith yelling at Green to stop. She testified that when Green started to go around the barricade, Meredith first motioned to her car and then hit it with his hands, yelling at Green to stop. Instead of stopping, Green accelerated and drove into the parking lot. McHugh did not see Meredith cause any damage to Green’s car and did not think there was enough time for him to have done so. McHugh testified that Meredith’s hands were open, and he did not use a weapon or any other object to strike Green’s car. McHugh testified that she had a clear view of Meredith handcuffing Green, and she did not see Meredith strike Green or bang her head against the car. Paul McHugh’s testimony was consistent with Lora’s testimony.
Stillwater Police Sergeant Jeff Magler examined Green’s car after the incident. He testified that the damage to the car was consistent with Meredith’s account of what happened.
Green was charged by complaint with one count of felony obstructing legal process in violation of Minn. Stat. § 609.52, subds. 1(1), 2(1) (1998), and one count of gross-misdemeanor obstructing legal process with force in violation of Minn. Stat. § 609.52, subds. 1(2), 2(2). A jury found Green guilty as charged.
Green neither objected to nor sought cautionary instructions regarding the prosecutor’s statements that she now argues were misconduct.
Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor’s comments during closing argument if the defendant fails to object or seek cautionary instructions.
State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
This court, however, may reverse a conviction despite the defendant’s failure to object or seek cautionary “instructions if the prosecutor’s comments were unduly prejudicial.” Whittaker, 568 N.W.2d at 450. The test is whether any inappropriate comments likely played a substantial part in influencing the jury to convict the defendant. State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). A defendant’s failure to object implies that the comments were not prejudicial. Whittaker, 568 N.W.2d at 450.
Green objects to the following argument by the prosecutor as an improper attack on her character:
[Green] is charged with obstructing legal process. It’s a law that’s been in the State of Minnesota for quite some time. It isn’t a law that was invented the day before [Green] decided that she was going to think about me * * * and not about the Stillwater Police Department * * *. It was all about me, Kathryn Leigh Green, and on July 30th, 2000, she didn’t care what a Stillwater police officer had to do as part of his duty, his instructed duty, which was to direct traffic westbound on Curve Crest, or southbound on Greeley. Two options. Not difficult to understand. In fact, [Green’s] own daughter admitted that they knew that’s what the game plan was. This isn’t an officer that sat there and well, you know, maybe you can do this, maybe you can do that. His instructions were pretty simple. You don’t go northbound on Greeley for any reason.
Now, the defense would have you believe that this woman was somehow a victim of circumstances, that, I couldn’t go forward and I couldn’t go backward and I had to just do the best I could under the circumstances. Well, what about the other motorists that were at that intersection? The other witnesses Paul and Lora McHugh and Officer Meredith testified were all directed westbound on Curve Crest. No difficulty. They didn’t have any difficulty going that route. Loren Rosand didn’t have any difficulty going that route. You don’t have to be a police officer to figure out that nobody is going northbound on Greeley. Apparently [Green] doesn’t understand no. So to ask her what part of no don’t you understand is meaningless because she is going to want to do the whatever she wants to do whenever she wants to do it, and nobody, no chubby little pig, no fat pig from the Stillwater Police Department is going tell her what she has to do * * *.
The officer testified that he approached the right side of her vehicle. * * * His job was to redirect traffic. Look, lady, you’re either going to have to make a U-turn and go westbound on Curve Crest or you’re going to have to turn around and go southbound on Greeley.
Now, what was her reaction to that? On cross-examination just a few moments ago I specifically asked [Green’s] daughter to admit that her mother swore at Officer Meredith. You know, it’s not so much the swearing. Profanity is an unfortunate fact of life in our society and we all try to do better and it’s pretty obvious from the reading of the transcripts yesterday that [Green’s] vocabulary is probably in need of serious revision. She used that F word and the MF word every other sentence. * * *
Why is that important? It’s important * * * because in order to find [Green] guilty of these offenses you must find that she acted intentionally, that she intended to interfere with Officer Nate Meredith in the performance of his duties.
Improper character attacks may constitute prosecutorial misconduct if the prosecutor’s references to the defendant’s character have the potential for planting in the jurors’ minds a prejudicial belief from otherwise inadmissible evidence. State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998) (holding that a prosecutor’s references to the defendant as a “coward” with a “twisted thought process” were improper) (quotation omitted); State v. Ives, 568 N.W.2d 710, 713-15 (Minn. 1997) (“would-be punk” with a “pathetic little life” improper). But a “prosecutor may draw reasonable inferences from the evidence produced at trial.” State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997); see also State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996) (“because intent is a state of mind, it is generally proved by inferences drawn from a person’s words or actions in light of all the surrounding circumstances”).
The prosecutor’s argument was based entirely on evidence that was admitted at trial. The prosecutor argued that Green’s profanity and anger towards Meredith and her insistence on parking in a lot north of Greeley Street, despite an obvious barricade, an alternative route, and Meredith’s directions to turn around, showed that she intentionally interfered with Meredith’s performance of his duties and was not a victim of circumstances. The inferences drawn by the prosecutor were reasonable based on the evidence presented at trial.
Green next argues that the following argument was an improper expression of personal opinion:
The defense would also have you believe that [Green] was roughed up by a police officer, and both [Green’s] daughter and Casie Dame told their tale of woe * * *.
After pointing out that Germscheid’s and Dame’s testimony was inconsistent with the testimony of Meredith, Rosand, and the McHughs, the prosecutor stated:
[Green] wasn’t dragged across the grass. Give me a break. You’re going drag somebody across the grass while Mr. and Mrs. McHugh are there with their three and five year old? How about another police officer who’s going to have to write up, oh, my gosh, oh, my gosh, another police officer is using excessive force to subdue a suspect. No. Made up. It’s made up to make the Stillwater Police department look bad, and, you know, this isn’t, as I said earlier, * * * this is not the Stillwater Police Department versus Kathy Green. This is the State of Minnesota versus Kathy Green and your focus should be on whether she obstructed legal process, not on some red herring about the manner in which she was taken into custody.
The prosecutor has the right to argue that a state’s witness is worthy of credibility based on the prosecutor’s analysis of the evidence. State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977). But the prosecutor may not express a personal opinion about the witness’s credibility. State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995). Further, a prosecutor “may state conclusions and inferences [that] the human mind may reasonably draw from the facts in evidence,” but must not offer the prosecutor’s opinion as substantive evidence of a defendant's guilt. State v. Gulbrandsen, 238 Minn. 508, 511, 57 N.W.2d 419, 422 (1953).
The prosecutor’s argument was based on the evidence at trial. The prosecutor argued that the testimony of Meredith, Rosand, and the McHughs was more credible than that of Germscheid and Dame. The prosecutor’s argument was not an improper expression of personal opinion. Compare Porter, 526 N.W.2d at 363 (improper argument when prosecutor stated that if jury believed testimony of defense witness, “I got time share in Santa Claus’s condo at the north pole, and I will sell you some. You are not that big of suckers, and you know that.”).
Finally, Green argues that the following argument misstated the law:
The offenses with which she is charged, obstructing legal process, do not require the State of Minnesota to prove that Kathryn Leigh Green intended to hit or otherwise assault Officer Meredith. They only require that she interfere with the officer in the performance of his duties and in so doing created a risk of serious property damage, substantial bodily harm or death. We have never alleged that she intended to hit the police officer and we are not required to prove that she intended to hit Officer Meredith in order to satisfy our burden.
Minn. Stat. § 609.50, sudbs. 1(2) (2000), states:
Whoever intentionally does any of the following may be sentenced as provided in subdivision 2: * * *
(2) obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties[.]
Minn. Stat. § 609.50, subd. 2(1)(i) (2000), makes obstruction of legal process a felony “if the person knew or had reason to know that the act created a risk of death, substantial bodily harm, or serious property damage.”
The prosecutor misstated the law by stating that the state was only required to prove that Green’s conduct created a risk of serious property damage, substantial bodily harm, or death, rather than that she knew or had reason to know that her conduct created such a risk. But the district court correctly instructed the jury on the elements of felony obstruction of legal process, provided the jury with a written copy of the instructions, and instructed the jury to disregard any statement by counsel on the law that differed from the court’s instructions.
The evidence against Green was strong. Meredith’s account of what happened was consistent with the testimony of Rosand; the testimony of two disinterested witnesses, the McHughs; and the damage to Green’s car. Green’s swearing during the incident and the attitude and anger she displayed towards Meredith during her telephone conversations while in jail support the state’s theory of the case, as opposed to Green’s theory that she was a victim of police misconduct. Given the strength of the state’s case against Green, even if the comments to which Green now objects were inappropriate, it is not likely that the comments played a substantial part in influencing the jury to convict Green.